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Judgment
Jyotsna Rewal Dua, Judge
All these writ petitions involve almost common questions of facts and law, hence, with consent of learned counsel for the parties, have been taken together for adjudication. For convenience, reference hereinafter has been made to facts from CWP No.1782/2026 (The Executive Engineer, H.P.P.W.D. (B &R), Division Joginder Nagar versus Narvada Devi).
State feels aggrieved against an order passed by learned Labour Court-cum- Industrial Tribunal, Kangra on 27.02.2025 allowing an application moved by the respondent under Section 33-C(2) and 29 of the Industrial Disputes Act, 1947 (in short, the Act) read with Section 151 of Civil Procedure Code. In terms of the impugned order, respondent was held entitled to all monetary benefits on actual basis w.e.f. 04.01.2012 to 21.08.2015 alongwith 9% interest per annum from the date of filing of the application.
2(i). Respondent’s case was that she had been engaged by the petitioner-State on daily wages on muster roll in the year 2002 but she had been given fictional breaks in service from time to time till 31.08.2007. It was only after an office letter was issued by the petitioner-Principal Secretary, Public Works Department on 14.09.2007 directing the department not to given fictional breaks to the workmen that the department stopped giving fictional breaks to the respondent. After taking into consideration respondent’s continuous service w.e.f. 14.09.2007, State regularized her services on 18.08.2015. In view of industrial dispute raised by respondent-workman, appropriate Government sent following reference for adjudication to learned Labour Court:-
“Whether time to time termination of the services of Smt. Narvada Devi, w/o Shri Chand Ram, R/o Village Laknehher, P.O. Chauntra, Tehsil Joginder Nagar, District Mandi, H.P. during November, 2002 to 31.08.2007 by the Executive Engineer, B & R Division H.P.P.W.D., Joginder Nagar, District Mandi, H.P., without complying with the provisions of the Industrial Disputes act, 1947, is legal and justified? If no, what amount of back wages, seniority, past service benefits and compensation the above worker is entitled to from the above employer?”
The reference was decided under an award passed by the learned Labour Court on 24.06.2017 as under:-
“As sequel to my findings on foregoing issues, petitioner is held to be in continuous, uninterrupted service with the respondent from the date of her initial engagement and that the breaks given by the respondent being fictional in nature shall have no effect on the seniority and continuity of service of the petitioner and her seniority shall be reckoned from her initial date of engagement. Accordingly, claim of petitioner is hereby allowed in part and reference is accordingly answered in favour of petitioner. The petitioner shall thus be deemed to be in continuous service of respondent with consequential benefits except back wages. She shall, however, be considered for regularization by respondent at the time when her juniors have been regularized as per policy governing daily wagers as framed by State Govt. and operative from time to time. The parties, however, shall bear their own costs.”
Learned Labour Court while allowing the claim petition held the respondent to be in continuous, uninterrupted service with the petitioner from the date of her initial engagement; Fictional breaks given in the service of respondent were to have no impact upon her seniority and continuity; Respondent‘s seniority was to be reckoned from the date of her initial engagement; Respondent was to be deemed to be in continuous service of the petitioner with consequential benefits except back wages; Respondent was also to be considered for regularization by the petitioner from the time her juniors had been regularized in accordance with policies framed by the State Government from time to time.
2(ii). Petitioner- State considered respondent’s claim under the aforesaid award and granted her regular scale retrospective w.e.f. 18.08.2012 under office letter 04.04.2018. Conferment of monetary benefits on retrospective regularization was restricted on notional basis w.e.f. 18.08.2012 till 21.08.2015. On 08.06.2018, respondent moved an application under Section 33-C(2) read with Section 29 of the Act before learned Labour Court for implementation of the award dated 24.06.2017 inter alia praying therein for grant of difference of wages/ arrears i.e. consequential benefits from the date of regularization of her junior in terms of award as also, the regularization policy framed by the State Government from time to time i.e. 4.1.2012 to August, 2015.
The respondent complained that one workman Sh. Ram Dhan though junior to her but had been regularized by the petitioner w.e.f. 04.01.2012, therefore, respondent was also entitled to equal pay for equal work from the date of regularization of aforesaid Sh. Ram Dhan; The differences of wages was accordingly claimed by her from 04.01.2012 to 21.08.2015. The respondent also quantified such difference and the amount of arrears.
2(iii). Petitioner’s stand in the application was that award passed by learned Labour Court on 24.06.2017 had been already implemented by them by issuing order on 04.04.2018 regularizing the respondent retrospectively w.e.f. 18.08.2012. Petitioner opposed respondent’s prayer primarily on the ground that respondent having been denied back wages in the award dated 24.06.2017, was not entitled to actual monetary benefits w.e.f. date of her retrospective regularization.
2(iv). The surviving dispute between the parties pertained to the payment of difference of arrears on account of regular pay scale w.e.f., 04.01.2012 to 21.08.2015. Respondent claimed actual monetary benefit for the period in question. The claim has been accepted by the learned Labour Court. Keeping in view the award dated 24.06.2017 and The State of H.P. versus Sansar Chand and others2, learned Labour Court vide order dated 27.02.2025 concluded that the respondent was entitled to all benefits on actual basis in the regular pay scale w.e.f. 04.01.2012 to 21.08.2015 alongwith interest @9% per annum from the date of filing of the application. Feeling aggrieved State has assailed the said order of the learned Labour Court.
Learned Deputy Advocate General contended that the learned Labour Court in the award dated 24.06.2017 had denied back wages to the respondent. Having held so, the respondent could not have been granted actual monetary benefits on account of her retrospective regularization; The jurisdiction assumed by the learned Labour Court while allowing the application of the respondent did not vest in it under Sections 33-C(2) and 29 of the Act. Reliance in this regard was placed upon A.P. State Road Transport Corporation and others versus Abdul Kareem3, State of U.P and another versus Brijpal Singh4 & Rai Bahadur Narain Singh Sugar Mills Limited versus Mangey Ram5. Learned Deputy Advocate General also argued that even otherwise grant of consequential benefits would not include actual monetary benefits unless and until a specific reference to the same is discernible from the award. In support of this submission, K. Ananda Rao and others versus S.S.Rawat, IAS and others6 was pressed into service.
As against the above submissions, learned counsel appearing for the respondent-workman defended the impugned order. It was submitted that bare provision of Section 33-C(2) of the Industrial Disputes Act empowers the learned Labour Court to decide the question raised by the workman as to the amount of money due or as to the amount at which any benefits granted are being capable of being computed in terms of money under the award passed by the learned Labour Court. It was also submitted that the back wages denied to the respondent under the award dated 24.06.2017 had to relate only to the period for which reference had been made to the learned Labour Court; For rest of the period not covered under the reference, back wages had not been denied to the respondent. Respondent had not been debarred from actual monetary benefits flowing to her on account of retrospective regularization. Consequential benefits had been specifically allowed to the respondent. The consequential benefits would include all monetary benefits due to the respondent in view of her retrospective regularization. Unless and until, actual monetary benefits are specifically excluded from the relief granted, the same has to be construed to have been allowed. Prayer was accordingly made for dismissing the writ petition.
Scope of jurisdiction of Learned Industrial Tribunal-cum- Labour Court under Section 33-C(2) of the Act was elaborated by Hon’ble Apex Court in Phool Mohammad versus Executive Engineer, Electricity Urban Distribution and another7 as under:-
“5.In the ruling of five-Judge Bench of this Court in “Central Bank of India v. P.S. Rajagopalan” (1963) 3 SCR 140, the scope of proceeding under Section 33C, have been broadly described. Referring to that decision and having regard to later judgments, this Court, subsequently in “Voltas Ltd. v. J.M. Demello” (1971) 2 SCC 479 held as follows:—
“The question as to the scope of jurisdiction of a Labour Court under Section 33C(2) has been a subject-matter of several decisions of this Court. It
72023 SCC Online SC 1722 is not necessary to go into those decisions once again as in the Chief Mining Engineer, East India Coal Co. Ltd., v. Rameshwar (1968) 1 SCR 140 all those decisions were examined and the propositions deducible from them were formulated. As stated in propositions (5) and (8), proceedings under Section 33-C(2) are analogous to execution proceedings and a Labour Court called upon to compute benefits claimed by a workmen is in the position of an executing court and as such competent to interpret an award where there is a dispute as to the rights thereunder or as to its correct interpretation. Obviously, if the award is unambiguous, the Labour Court is bound to enforce it, and under the guise of interpreting it, it cannot make a new award by adding to or subtracting anything therefrom. Although it cannot go behind the award, it is nevertheless competent to construe the award where it is ambiguous and to ascertain its precise meaning, for, unless that is done, it cannot enforce the award when it is called upon to do so by an application under Section 33-C. As held in The Central Bank of India v. Rajagopalan, a claim under Section 33-C (2) postulates that the determination of the question about computing in terms of money may in some cases have to be preceded by an inquiry into the existence of the right. Such an inquiry is incidental to the main determination assigned to the Labour Court by that sub-section. While inquiring into the question as to the existence of such a right, and construing the award, the Labour Court can look into the demand by the workmen in order to ascertain whether the award under which the right is claimed was, or was not beyond the scope of the demand; in other words, whether the award was within jurisdiction. (cf. also Bombay Gas Co. Ltd. v. Gopal-Bhiva (1964) 3 SCR 709, 715-716. This position was conceded by Mr. Tarkunde.
6.Having regard to the clear legal position, the High Court could not have done what it in fact did, i.e. , to set aside the second order of the Labour Court which merely calculated the amounts dues and made consequential directions. The adjudication between the parties having crystallized with the award dated 22.12.1995 which was confirmed by the High Court, there was no occasion for any intervention much less by the High Court.”
Under Section 33-C(2), learned Labour Court is vested with the power to calculate the amount due to the workman under the award. In Bombay Chemical Industries versus Deputy Labour Commissioner and another,8 settled position of law was re-iterated that in application under Section 33-C(2) of the Act, learned Labour Court has no jurisdiction to adjudicate dispute of entitlement or the basis of claim of workmen. It can only interpret the award or settlement on which claim is based. Labour Court’s jurisdiction under Section 33-C() of the Act is like that of an Executing Court. Whenever a workman is entitled to receive from his employer any money or benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied such benefit, can approach Labour Court under Section 33-C(2). The benefit sought to be enforced under Section 33-C(2) of the I.D. Act is necessarily pre-existing benefit. Relevant portion from decision is as under:-
“8.As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. , the labour court’s jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See MCD v. Ganesh Razak )
9.In the case of Kankuben , it is observed and held that whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33C (2) of the ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not.”
4(i). Coming to the facts of the case, industrial dispute raised by the respondent-workman pertained to the period November, 2002 to 31.08.2007 i.e. when the respondent was allegedly being given fictional breaks in her
9MCD v. Ganesh Razak, (1995)1 SCC 235: 1995 SCC (L&S) 296
10Union of India v. Kankuben, (2006) 9 SCC 292 service. Reference was sent to the learned Labour Court by the appropriate government for adjudication of respondent’s claim only for this specific period. The reference was decided under the award dated 24.06.2017. It was held that fictional breaks given to the respondent (but obviously for the period in question i.e. November, 2002 to 31.08.2007) would have no effect upon her seniority and continuity of service. Respondent’s seniority would be reckoned from the date of her initial engagement with all consequential benefits except back wages. In other words, back wages, were denied to the respondents for the period of fictional breaks which under the award was ordered to be computed towards her seniority & continuity in service. The respondent was specifically directed to be considered for regularization from the date of regularization of her juniors. The fictional breaks given to the respondent for the five years period in question were not to be taken into consideration by the petitioner. Thus, entire service period of the respondent including the fictional breaks was to be computed as continuous service rendered by her. Though for the period of fictional breaks, the respondent would not have been entitled for back wages, but other consequential benefits were held admissible to her. By treating this period to be continuous service rendered by the respondent, the petitioner-State was also directed to consider her case for the regularization from the date her juniors were regularized. After passing of the award, the petitioner-State regularized services of the respondent w.e.f. 18.08.2012 vide office letter dated 4.4.2018 but denied actual monetary benefits from the date of her retrospective regularization. I am in agreement with the submissions made by learned counsel for the respondent that in terms of the award read with reference decided under the award, denial of back wages had to necessarily relate to the period of five years during which the respondent had complained of having been given fictional breaks. It is this period which has been ordered to be considered under the award for the purpose of respondent’s seniority and continuity in service to be considered for regularization. The respondent has also been held entitled to consequential benefits. The regularization of respondent’s service in terms of award dated 24.06.2017 has been allowed by the petitioner-State w.e.f. 18.08.2012 vide order dated 04.04.2018. This necessarily has to include the difference of emoluments w.e.f. 04.01.2012 (date of regularization of her junior Sh. Ram Dhan) to 21.08.2015 (the original date of regularization of respondent). It is well settled that consequential benefits would include monetary benefits unless excluded by the Court under specific directions. All benefits easily quantifiable in the nature of loss of salary, emoluments and other benefits would fall within the ambit of expression ‘consequential benefits.’ The petitioner is not barred from claiming the arrears of difference of amount w.e.f. 04.01.2012 to 21.08.2015 under the award. This period is even otherwise beyond the period that was in question in the reference.
4(ii). Further, reliance placed by the learned Labour Court upon Sansar Chand2 in allowing the application under the impugned order, is justified. Reference No. 09 of 2011 was preferred by 31 persons including one Sh. Sansar Chand wherein following issue come up for adjudication before the learned Labour Court-cum-Industrial Tribunal:
"Whether demand notices dated -12.8.2010 & 05.9.2010 served by the Pradhan, Him Shakti P. W.D. (B.M.S.) Sub Division Jai Singhpur, Distt. Kangra, H.P. before the Executive Engineer, HPPWD Division Baijnath, Distt. Kangra, H.P. to consider the period of fictional breaks given to 31 workmen as per "Annexure-A" (Copy-enclosed) towards continuity in their service from the date of their initial appointment till September, 2007 when they were given work in continuity and to regularise them alongwith seniority in service is legal and justified? If yes, to what service benefits, seniority and relief the above workmen as per Annexure -A are entitled to from the concerned employer? If not, what are its legal effects?"
The above reference was decided by the learned Labour Court-cum-Industrial Tribunal as under:-
“17.In view of my findings on issue No.1 above, the petition succeeds in part and the some is partly allowed. The breaks given from the year 2003 onwards to the 31 labourers represented by the petitioner shall be deemed to have worked for 240 days without any break and the fictional breaks given are held to be wrong, illegal and discriminatory, in view of the work given to Kundan Lal, daily wager from the year 2003 onwards for more than 240 days a year. Therefore, the 31 labourers as per Annexure A, shall be entitled to seniority and continuity in service from the year 2003 onwards, except back wages. These workers shall be considered for regularization by the respondent as per the policy governing the daily wagers, as framed by the State Government and operative from time to time. In the peculiar facts of the case, the parties shall bear their own casts.”
Respondents set-down to implement the award passed in Reference No. 9 of 2011. Sh.Sansar Chand and other claimants were, inter-alia, regularized retrospectively, but the actual monetary benefits were restricted to them from the date of issuance of the regularization order. Feeling aggrieved, Sh. Sansar Chand preferred O.A. No. 230 of 2017 before the erstwhile H.P. Administrative Tribunal. The O.A. was allowed on 26.03.2018. Sh. Sansar Chand was held entitled to actual arrears of pay/financial benefits w.e.f. the date when his service was regularized on notional basis alongwith interest @ 9% per annum. Respondents-State preferred CWP No. 182 of 2019, assailing the decision rendered in O.A. No. 230 of 2017. While dismissing the writ petition, Hon’ble Division Bench of this Court held as under:-
“5.Having given our thoughtful consideration to the submissions, we do not find any merit therein. We say so for the reason that the respondents were undisputedly reinstated in service by the Labour Court-cum-Industrial Tribunal with continuity of service, though part of back wages was denied to them. Once the respondents were reinstated in service with continuity of service, they shall be deemed to have been serving uninterruptedly. It could not be seriously disputed that had the respondents been in service, but for their illegal retrenchment, their services would have been regularized in the year 2012 itself. It was only after their reinstatement pursuant to the award passed in the year 2014 that their claim for regularization was belatedly considered in the year 2015. Such delay is not attributable to the respondents. Moreover. in case the consequential financial benefits arising out of the order of regularization of services are denied to the respondents, it would lead to a conflict between the order reinstating them in service with continuity of service, especially in the light of the fact that such an award of the Labour Court has already been accepted by the Authorities.
6.As regard to the preliminary objection of limitation, we do not find any merit therein. It is a matter of record that the respondents had immediately after passing of the order of regularization in the year 2015, approached the Tribunal within limitation and they were asked to make representations to the competent authority. They availed such remedy and their representations were turned down in the year 2017 only, i.e., on 21.03.2017. If the period of limitation is counted from the date post rejecting their claim, the second Original Application filed by them was admittedly within limitation.
7.Taking into consideration the aeration of the period for which arrears of pay are required to be paid to the respondents, who are Class-IV employees, we do not deem it necessary to interfere with the order under challenge. The petition is accordingly dismissed, so also pending miscellaneous applications, if any.”
In the aforesaid decision, it was held that petitioner therein (Sh. Sansar Chand) had been re-instated in service by the learned Labour Court-cum-Industrial Tribunal with continuity in service, though part of back wages was denied to him. Once Sh. Sansar Chand had been re-instated with continuity in service, he was deemed to be serving uninterruptedly. Hence, it cannot be disputed that had Sh. Sansar Chand been in service, but for his illegal retrenchment, his service would have been regularized in the year 2020 itself. It was only after his reinstatement, pursuant to the award passed in the year 2014, his claim for regularization was belatedly considered in the year 2014. Such delay cannot be attributed to the workman Sh. Sansar Chand. Therefore, order of the Tribunal holding Sh. Sansar Chand entitled for consequential financial benefits arising out of order of regularization of his service was held justified.
Based upon above, one Bakshi Ram11 also claimed arrears/consequential benefits from the date of his retrospective regularization. The effect of above reference in cases of similar situated workmen was noticed in Bakshi Ram versus State of H.P and others11 as under:-
“4.Heard learned counsel for the parties and considered the case file.
It has not been disputed that terms of the reference in Reference No. 62 of 2013 (in case of the petitioner) were the same as in Reference No. 9/2011 (in case of thirty-one workmen including Sh. Sansar Chand). It is also not in dispute that award passed in Reference No. 62 of 2013 on 30.07.2015 was similar to the one passed on 30.06.2014 in Reference No. 9 of 2011. Petitioners in both the awards were held entitled to the similar benefits and similar directions were issued to the respondents. The respondents implemented both sets of the awards in case of the claimants therein and issued regularization orders, but on notional basis from retrospective dates and actual basis from the date of issuance of regularization orders. petitioner’s representation seeking actual benefits from the notional date of regularization was turned down by the respondents. Petitioner moved learned Administrative Tribunal. Pursuant to the directions issued by the Tribunal in O.A.(D) No. 286 of 2017, respondents considered and rejected the case of the petitioner on 18.11.2017. In the meanwhile, Sh. Sansar Chand, one of the claimants in Reference No. 9 of 2011, also moved the Tribunal, seeking the same relief as prayed by the present petitioner. Original Application (D) No. 230 of 2017 filed by Sh. Sansar Chand was allowed by the Tribunal on 26.03.2018. He was held entitled to actual benefits from the date his services were regularized on notional basis. This decision was affirmed by Hon’ble Division Bench of this Court in CWP No. 182 of 2019.
Learned counsel for the petitioner pointing out to paragraph-8 of the writ petition submitted that the respondents had implemented the decision rendered in O.A. (D) No. 230 of 2017 as affirmed on 25.02.2019 in CWP Nol. 182 of 2019, not only in case of Sh. Sansar Chand, but in case of all other thirty workmen who were claimants in Reference No. 9 of 2011 even though many out of the other thirty workmen had not moved the Court against the order passed by the respondents restricting the grant of actual monetary benefits from the date of issuance of regularization orders. Petitioner is also similarly situated and, therefore, he could not have been discriminated.
There is considerable force in the contention of the learned counsel for the petitioner. The facts as noticed above, makes it amply clear that that the references being adjudicated by the learned Labour Court-cum-Industrial Tribunal in different claim petitions filed by petitioner and Sh. Sansar Chand had similar terms. The awards passed in the two reference petitions were also on similar lines. The subsequent action taken by the respondents regarding regularization of claimants was also on same pattern i.e. Sh. Sansar Chand & thirty others and the petitioner were though granted benefits of regularization, but notionally from retrospective dates and on actual basis from prospective dates i.e. from the date of issuance of regularization orders. Pursuant to the decision rendered in CWP No. 182 of 2019 in case of Sh. Sansar Chand, he was released actual monetary benefits from the notional date of regularization of his services. Respondents implemented the above decision on their own in case of all other thirty workmen in Reference No.9 of 2011 as well, many of them have not moved the Court seeking actual benefits from the notional date of regularization of their services. Petitioner, therefore, is also entitled for the grant of actual monetary benefits from his deemed date of regularization. Significantly, Hon’ble Division Bench of this Court while deciding CWP No. 182 of 2019 (originating from the order passed by the learned Tribunal in case of Sh. Sansar Chand) has held that once the workman was reinstated in service with continuity of service, he is to deemed to be serving uninterruptedly; Had he been in service, but for his illegal retrenchment, his service would have been regularized in time; The fault for delayed consideration of workman’s case for regularization lies with the respondents who reinstated the workman pursuant to the award passed in his favour; Such delay is not attributable to the workman; In such situation, if consequential benefits arising out of order of regularization of services are denied to the workman, it would lead to conflict between the order reinstating him in service with continuity of service. The above observations squarely apply to the facts of the instant case as well. In view of above, petitioner’s claim of actual monetary benefits cannot be said to be suffering from delay and laches. Petitioner had instituted OA (D) No.286 of 2017 for getting actual monetary benefits. In compliance to the directions issued by the learned Tribunal on 13.07.2017 in the Original Application, respondents considered the case of the petitioner and rejected it on 18.11.20217. In the meanwhile, learned Tribunal allowed a similar claim O.A. (D) No. 230 of 2017, filed by Sh. Sansar Chand on 26.03.2018. This decision remained under challenge before this Court till 25.02.2019. Respondents implemented the directions and granted actual monetary benefits even to those workmen who had not prayed for grant of actual benefits from the notional date of regularization. Present Writ petition instituted on 19.01.2022, under the circumstances, cannot be said to be suffering from delay and laches.”
The above position inter alia takes into consideration the implementation by the State of the decision rendered in Sansar Chand,2 as also in cases of 31 other workmen who had not even moved the Court seeking actual benefits from the notional date of regularization of their service but were granted actual monetary benefits. There even otherwise could not be discrimination between similar situated workmen.
In the instant case, respondent had been discharging the same duties throughout. Learned Labour Court in the award dated 24.06.2017 had directed the petitioner- State to consider respondent’s case for regularization disregarding the fictional breaks given in her service for the period 2002 to 2007 by denying the back wages to the respondent for aforesaid five years period but granting all consequential benefits. Therefore, application moved by the respondent seeking actual monetary benefits from the date of regularization of her junior i.e. 04.01.2012 till 21.08.2015 was justiciably allowed. Petitioners- State could not have restricted these benefits on notional basis to the respondent workman. There is no merit in these writ petitions. The same are accordingly dismissed. Pending miscellaneous application(s), if any, shall also stand disposed of.